Breaking Down The PRO Act
A detailed explainer on the most comprehensive labor law bill since Taft-Hartley.
A lot has been written about the Protecting the Right to Organize (PRO) Act since it passed the House of Representatives in February 2020, but I have yet to find a detailed breakdown of the bill’s proposed amendments to the National Labor Relations Act that is publicly available. With Joe Biden’s inauguration just days away, I’ve decided to fill that gap.
What follows is a section-by-section explainer of the PRO Act that describes how the NLRA would be altered and strengthened. I hope both legal laypersons and experienced labor law practitioners will find use from this post.
[Edited on February 4, 2021 to reflect the changes made in the bill submitted in the 117th Congress.]
Section 1 contains the NLRA’s “preamble”, which sets forth its legislative findings and purpose.
The PRO Act does not attempt to amend this Section, which means our labor law’s overriding goals remain to further industrial peace through the encouragement of collective bargaining.
Section 2 sets forth the NLRA’s definitions of important words and phrases.
The PRO Act amends the definition of “employer” to include those that exercise “direct or indirect” control over employees.
This provision essentially codifies the Obama Board’s Browning-Ferris “joint employer” standard that the Trump Board has attempted to overturn through multiple routes. It would greatly relax the usual usual standard at common law of finding joint employer status. Workers could more easily organize such employers and strike them when organized. The current rules make the former extremely difficult and the latter mostly unlawful.
The PRO Act amends the definition of “employee” to include the so-called “ABC” test made famous in the California Supreme Court’s Dynamex decision.
The NLRB has always derived its definition of employee from the common law, which sets forth a double-digit factor test that must be weighed in determining whether a worker is an employee or independent contractor. The Obama Board nibbled at the edges of this test with its FedEx decision, but the Trump Board reversed these efforts in 2019 in the SuperShuttle case. As evidenced by gig companies’ furious lobbying efforts in California, the ABC test is massively feared by employers because it significantly relaxes the standard for finding employee status to better conform with modern industry.
The PRO Act narrows the definition of “supervisor.”
A great frustration for union proponents over the last 40-plus years has been the Supreme Court’s willingness to grant supervisory status to all sorts of workers that would hardly be thought of as management conduits, thus preventing their inclusion in bargaining units. The PRO Act would reverse this trend by striking “assign” and “responsibility to direct” employees from the NLRA’s definition of supervisor, as these duties hardly connote true managerial functions in modern workplaces.
Sections 3, 4, 5 and 6 create the NLRB and set forth its basic duties, functions, and personnel.
The PRO Act reinstates the NLRB’s responsibility to submit annual reports to Congress summarizing significant case activities and operations.
The Federal Reports Elimination and Sunset Act of 1995, an austerity bill made to reduce the amount of information Congress receives annually from federal agencies, is repealed so far as it pertain to the NLRA.
The PRO Act repeals the Taft-Hartley Act’s ban on the NLRB hiring economists.
This is probably one of the lesser-known shackles that Taft-Hartley placed on the NLRB, but it was an important one. The NLRB’s economics division was a powerful tool for studying industrial statistics and trends and helped the Board craft its remedies accordingly, but it was red-baited out of existence during a conservative-led investigation into the agency. The PRO Act would restore the NLRB’s powers to hire economists and bring it in line with virtually all other federal agencies.
Section 7 is the heart of the NLRA. It is the provision which grants employees the right to join (or refrain from joining) unions, to collectively bargain with their employer, and undertake various concerted activities for “mutual aid and protection.”
The PRO Act does not amend this Section in any way.
Section 8 sets forth employer and union unfair labor practices and defines other unlawful conduct.
The PRO Act makes it an unfair labor practice for employers to promise to, threaten to, or take action to permanently replace economic strikers.
This is one of the more discussed components of the bill. It would overturn the much-derided Mackay Radio case and close the confounding doctrinal gap between economic and unfair labor practice strikers (removing, for example, the economic striker language in the voter eligibility provision of Section 9(c)(3)).
The PRO Act makes it an unfair labor practice for employers to undertake an offensive lockout of their workers.
Employers have been allowed to lockout their employees solely as a negotiating tactic since the Supreme Court held such offensive lockouts lawful in 1965. Many have pointed out that this economic weapon, when wielded aggressively by an employer, can vitiate employees’ right to strike. The PRO Act would make it so that only the traditional “defensive” lockout could be employed in labor disputes.
The PRO Act makes it an unfair labor practice for employers to incorrectly tell employees that they are independent contractors.
This would overturn the Trump Board’s Velox Express decision. Employers would not be allowed to knowingly or even unintentionally mislabel their workers’ employment status.
The PRO Act repeals the Taft-Hartley Act’s ban on secondary boycotts, jurisdictional strikes, and recognitional picketing.
Sections 8(b)(4) and (7) would be removed from the list of union unfair labor practices. Section 10(l)—the NLRB’s “mandatory injunction” against such activity—would accordingly be repealed, as would the provision allowing employers to sue in federal court for damages (Section 303).
The PRO Act makes it an unfair labor practice for employers to force employees to attend captive audience meetings.
Section 8(c) has long been interpreted to allow employers to hold compulsory anti-union meetings for their workers under threat of discharge. The PRO Act amends this provision to clarify that such conduct is not shielded by employers’ freedom of speech and would instead be unlawfully coercive.
The PRO Act makes it an unfair labor practice for employers to unilaterally implement proposed terms after reaching an impasse in contract negotiations.
This a total game-changer for labor relations that I have not seen get any coverage. Section 8(a)(5) of the NLRA makes it an unfair labor practice for employers to refuse to bargain with unions in good faith. Section 8(d) defines what constitutes good faith. The PRO Act would amend this definition to include an employer’s duty to “maintain current wages, hours, and working conditions pending an agreement”. Thus, the old management method of bargaining a union to impasse and unilaterally implementing the terms the union steadfastly resisted would now be unlawful.
The PRO Act makes it an unfair labor practice for an employer to withdraw recognition from a union without a decertification election.
Current law allows employers to withdraw recognition from a union even without a majority of employees in the bargaining unit having first voted the union out themselves. The PRO Act would make such an action a refusal to bargain under Section 8(a)(5).
The PRO Act sets rigorous standards for negotiating an initial contract, up to and including interest arbitration.
The PRO Act would require an employer to first meet with a union within ten days of the union’s certification as the employees’ bargaining representative. If after 90 days the parties have not reached agreement on an initial contract, either party may bring in the Federal Mediation Conciliation Service to oversee negotiations. If after 30 days of the FMCS’ entrance into negotiations the parties have still not reached agreement, the FMCS will refer the dispute to a tripartite arbitration panel for settlement of the remaining issues. The panel will be comprised of one union-selected member, one employer-selected member, and one member that is mutually agreed upon by the parties. The Act further sets forth the standards the panel should consider in reaching its decision(s).
The PRO Act repeals the Landrum-Griffin Act’s ban on so-called “hot cargo” agreements.
Prior to 1959, it was legal for employers and unions to negotiate provisions in collective bargaining agreements that prohibited the employer from handling or working with any product coming from another company with whom the union has a labor dispute. Such provisions were so powerful in the transportation industry that Congress saw fit to muzzle the Teamsters’ main strategy in enforcing solidarity. The PRO Act would lift this sanction.
The PRO Act makes it an unfair labor practice for employers to (1) force their employees to enter into mandatory arbitration agreements that waive those employees’ right to bring or join class-action lawsuits, or (2) to threaten, retaliate, or coerce their employees from bringing or joining such suits.
This is a direct repudiation of the Supreme Court’s Epic Systems decision. If it weren’t clear enough, the provision instructs courts to ignore the Federal Arbitration Act with regards to these agreements (as the Supreme Court should have done in the first place).
The PRO Act requires the NLRB to promulgate regulations forcing employers to post notices in the workplace informing employees of their Section 7 rights.
This provision would codify the Obama Board’s early rulemaking attempt that saw defeat in the D.C. Circuit. The judges’ argument was that nothing in the NLRA granted the Board the ability to authorize such requirements. This would remove that limit and bring NLRA rights into the same level of visibility as Title VII, ADA, ADEA, or OSHA rights.
The PRO Act requires employers to provide a list of potential voters to unions within two days of the NLRB’s direction of an election. The voter list shall include the names of all employees in the bargaining unit and such employees’ home addresses, work locations, shifts, job classifications, phone numbers, and email addresses.
This provision codifies the typical Excelsior Underwear list and speeds up the production from seven days to two. While Excelsior Underwear lists have been a way of life in NLRB elections since the mid-1960s, the Trump Board is currently proposing to gut them.
The PRO Act clarifies that employees possess Section 7 rights to use their employers’ electronic property to communicate (including computers, email, cell phones, and other company equipment).
This provision would codify the Obama Board’s Purple Communications decision, which was recently overturned by the Trump Board.
Section 9 sets forth the NLRB’s standards for election procedures and union certification.
The PRO Act removes employers’ standing as a party to representation proceedings. Accordingly, employers may no longer file a “RM” petition for an election.
This provision would correct what many view as an original sin of the Wagner Act, as expressed most forcefully in Craig Becker’s classic law review article on representation elections (Democracy in the Workplace: Union Representation Elections and Federal Labor law). Only unions and employees would have the power to call for an election and participate in NLRB hearings on those matters.
The PRO Act requires that the NLRB find the union’s proposed bargaining unit “to be appropriate if the employees in the proposed unit share a community of interest, and if the employees outside the unit do not share an overwhelming community of interest with employees inside.”
This would codify the Obama Board’s “micro-unit” rule that was established in the Specialty Healthcare decision. The Trump Board overturned it in late 2017 in the PCC Structurals case.
The PRO Act offers the union the choice whether to conduct the election vote electronically, by mail, in person at the employees’ worksite, or in person at another location that is not owned or controlled by the employer.
This provision has become far more relevant post-COVID, but unions have long called for expanded voting methods that don’t play directly into the employer’s home field advantage.
The PRO Act would certify a union through card check in elections that have been set aside because the employer committed an unfair labor practice or otherwise interfered with a fair election, and the employer did not demonstrate that the violation or other form of interference was unlikely to have affected the outcome of the election.
This is what the management lobby is calling “stealth” card check. It’s not a true card check because an election is still necessary, but in an election that the union lost despite having gone into the vote possessing signed authorization cards from a majority of the proposed bargaining unit, the employer must either have not committed a ULP or otherwise interfered with the “laboratory conditions” of the election setting. If one of these conditions are met, the NLRB will certify the union based on its majority card count. This provision would drastically cut down on current employer incentives to negatively campaign against a union.
The PRO Act requires that pre-election hearings be held no later than eight days after the NLRB’s notice of election was served on the union and that post-election hearings be held no later than 14 days after objections to the results of the election were filed.
This provision codifies the Obama Board’s so-called “quickie” election rules that drew so much employer ire. They were recently repealed by the Trump Board’s own election rulemaking.
The PRO Act requires the NLRB to dismiss election petitions in the following scenarios: (1) where, in the past 12 months the employer has voluntarily recognized a union; the employer and union have begun bargaining for a contract after the union was certified through a bargaining order; or the employer and union have begun bargaining following a succession in ownership, or (2) where there is a lawful collective bargaining agreement in place between an employer and a union.
These policies are, respectively, the NLRB’s recognition bar, the bargaining order bar, the successor bar, and the contract bar rule. The Trump Board has recently contemplated amending the contract bar, which has carried a three-year term since the 1960s, and has already amended the recognition bar rule by requiring employers to give employees a 45-day free period to file election petitions upon voluntary recognition of a union. These “bars” are in place to preserve bargaining relationships or let them take root before competition union petitions or (far more often) decertification petitions can be processed.
[This section was added in the 2021 version of the bill.]
The PRO Act would prevent the NLRB from processing an election petition so long as a union has filed an unresolved unfair labor practice charge against an employer.
This is the NLRB’s “blocking charge” policy, which the Trump Board recently gutted through its election rulemaking policy.
[This section was added in the 2021 version of the bill.]
Section 10 sets forth the NLRB’s remedial powers regarding the prevention of unfair labor practices.
The PRO Act amends the statute-of-limitations language in Section 10(b) from “six months” to “180 days.”
This is a very small change for most, but it’s a good edit for practitioners. Some unfair labor practice charges currently extinguish faster than others solely due to what months the ULP occurred in. A six-month period that includes February, for example, will artificially age a ULP.
The PRO Act removes the offset rule for backpay awards.
Since the Supreme Court’s Phelps Dodge decision in 1941, employees who have been discharged by way of employer unfair labor practices are required to seek interim work while waiting for an order of reinstatement from the NLRB. Any money earned from that new employer will be deducted from the eventual backpay award, which essentially creates a discount on the guilty employer’s transgressions. The PRO Act would remove this offset rule by requiring backpay awards to issue without any reduction for interim earnings.
The PRO Act removes the NLRB’s inability to order non-remedial damages for unfair labor practices.
Supreme Court rulings have made clear that the NLRA solely contemplates remedial relief. Punitive and other such compensatory damages are thus forbidden. But the PRO Act explicitly authorizes the NLRB to award front pay, consequential damages, double liquidated damages, and punitive damages in cases of “serious economic harm.”
The PRO Act removes the NLRB’s inability to order relief for undocumented workers.
In one of the Supreme Court’s cruelest decisions this century, a 5-4 conservative majority in Hoffman Plastic Compounds broadly interpreted our immigration laws to prevent undocumented workers from receiving backpay awards in NLRB proceedings. This decision greatly increased employers’ incentives to use undocumented workers, as they are essentially legal turnips for purposes for unfair labor practices committed in union organizing. The PRO Act would overturn this anomalous result.
The PRO Act renders NLRB orders as self-enforcing.
In another example of the NLRA’s self-inflicted weaknesses, Board orders are not currently self-enforcing. That is, an NLRB order has no legal power or effect until the NLRB petitions for enforcement of the order in a reviewing circuit court and has that order granted. The PRO Act would wisely flip this process on its head: NLRB orders are to have legal effect unless a circuit court later denies enforcement.
The PRO Act would make ignoring NLRB orders punishable by $10,000 per day for each separate unfair labor practice.
Currently, the act of ignoring most NLRB orders—such as an order to bargain for violating Section 8(a)(5)—will only result in additional agency proceedings to enforce the same order. Even those cases with monetary repercussions must be initiated through compliance hearings. The PRO Act disincentivizes employer obduracy in this arena by attaching a stiff civil penalty that compounds daily.
The PRO Act makes Section 10(j) injunctions mandatory rather than discretionary.
The Taft-Hartley Act did not attempt to hide its skewing of power towards employers. Its Section 10(l) injunctions (which deal with secondary boycotts and recognitional picketing) are mandatory and first-priority for the Board’s Regional Offices to seek in federal court, wheras Section 10(j) injunctions (which deal with all other unfair labor practices, most commonly “nip-in-the-bud” organizing discharges) are discretionary and must first be authorized by D.C. headquarters. With secondary boycotts and recognitional picketing legalized and Section 10(l) thus a dead letter, the PRO Act makes the Section 10(j) injunction receive the mandatory/first-priority treatment instead in the context of suspected Section 8(a)(1) and (3) violations. It further narrows the district courts’ ability to deny such injunction petitions to scenarios where the Board would have “no reasonable likelihood” of winning on those allegations at the eventual trial before the administrative law judge.
Section 11 sets forth the NLRB’s investigatory powers.
The PRO Act does not attempt to amend this Section.
Section 12 sets forth the NLRB’s offenses and penalties for interference with the agency’s procedures or its personnel’s duties, which amount to either $5,000 or imprisonment.
The PRO Act authorizes civil penalties for employer unfair labor practices and for violating the Act’s workplace-notice-posting rule and voter lists rule.
This is the teeth that unions have been begging for generations from NLRB orders. The PRO Act provides that each independent unfair labor practice can cost up to $50,000, but that number can double if the ULP was a Section 8(a)(3) discrimination case or another violation that resulted in “serious economic harm” to an employee. Violations can also reach $100,000 in situations where the employer is a repeat offender (i.e., if they have been found to have committed ULPs within the previous five years). The Act additionally authorizes penalties up to $500 for each day that an employer fails to comply with the Section 7 notice-posting-rule and the voter list rule.
The PRO Act creates personal liability of civil penalties for employers’ directors and officers.
This is an important tool for fighting large employers that can otherwise weather the PRO Act’s enhanced civil penalties. Unfair labor practices are often directed or committed with the express or constructive knowledge of the employer’s key management personnel. In such scenarios, the NLRB will be authorized to hold the guilty manager liable for the violations and enforce the monetary penalty against them personally.
The PRO Act creates a private right of action for individual employees alleging a violation of Section 8(a)(1) or (3).
As most are aware, the NLRB is currently the sole arbiter of whether an employer has committed an unfair labor practice within the meaning of Section 8(a) of the NLRA. If the Regional Office decides not to issue a complaint on a party’s ULP charge, the claim is extinguished with no other avenue of pursuing a remedy. The PRO Act would bring the NLRB in line with the EEOC by creating a private right of action in federal district court for employees that have either (1) had their claims dismissed by a Regional Office or (2) if the Region has not issued a decision on the charge within 60 days of its filing. The federal court would be empowered to order the same beefed-up remedies as would be available to the Board under the PRO Act, i.e., backpay without reduction, front pay, consequential damages, double liquidated damages, and punitive damages. Employees would further be eligible to receive attorney’s fees accrued in bringing the action to court.
Sections 13 and 14 are the NLRA’s “limitation” provisions. Section 13 (ostensibly) limits administrative and judicial interference with employees’ right to strike. Section 14 limits the power of union security clauses in states have that passed so-called “Right to Work” laws.
The PRO Act includes intermittent strikes, slowdown strikes, and partial strikes as protected concerted activity.
Under labor law, intermittent strikes (Briggs-Stratton), slowdowns (Elk Lumber), and partial strikes (Insurance Agents) are generally construed to be unprotected by Section 7. This means that while it is not inherently unlawful to conduct such strikes, any employee who participates in them may be disciplined by the employer without invoking the NLRA’s remedies. The PRO Act would explicitly bring these sort of strikes under the Act’s protections, greatly expanding the sort of job actions available to unions beyond the costly “traditional” strike of leaving work entirely.
The PRO Act repeals all state-level Right-to-Work laws.
The PRO Act would gut the heart of Taft-Hartley by removing its most glaring exception to the otherwise complete federal preemption of labor law: the repeal of Right-to-Work laws in the 27 states that currently have them. Union security clauses would thus be legal in those states for unions to negotiate. The PRO Act would enforce the CWA v. Beck rule as the floor in such clauses; that is, dissenting employees must pay an agency fee to the union for the cost of representation, collective bargaining, and contract enforcement (but presumably not for political lobbying expenses).
The PRO Act further amends several sections in the Labor Management Relations Act (LMRA) and the Labor-Management Reporting and Disclosure Act (LMRDA). Most of these revisions are simply to conform with the the amendments to the NLRA, i.e., the repeal on secondary boycotts would also repeal the LMRA section providing that employers can sue in federal court for damages from such job actions (Section 303). But there are a few standalone alterations.
The PRO Act requires employers to disclose to the Department of Labor any outside consultants they hire to fight union organizing campaigns.
This provision codifies the Obama DOL’s “persuader” rule that was struck down in federal court. Employers would have to disclose their financial arrangements with management lawyers or consultants regarding virtually any advice received in the area of union organizing.
The PRO Act adds whistleblower protections to the LMRDA.
Employees would be free from discipline or other forms of retaliation for providing information regarding the employer to the employee’s union, the DOL, or any local, state, or federal government agency.
[This section was not included in the 2021 version of the bill.]
The PRO Act requires the GAO to prepare and submit a report to Congress regarding sectoral bargaining.
While the PRO Act would greatly increase unions’ bargaining power, the bill alters little to nothing about the current law surrounding collective bargaining. “Enterprise” or “firm-level” bargaining would remain the de facto mode of negotiation. But with an eye to the future, the PRO Act would require the Government Accountability Office to issue a detailed report on the merits and possibilities of sectoral bargaining in the US for future congressional consideration.
[This section was not included in the 2021 version of the bill.]
The PRO Act authorizes for appropriation the funds necessary to carry out the provisions of the bill.
This is boilerplate language in federal legislation but is as important as ever here. The NLRB is critically and purposefully underfunded by Congress. Any political coalition strong enough to pass the PRO Act would assumedly also be able to increase the NLRB’s budget. Unions would undoubtedly feel emboldened to file more unfair labor practice given these amendments, which would result in more work for the agency’s personnel. The NLRB will need more resources and manpower to carry forth the new, stronger version of the NLRA.